September 2016

On Tuesday, September 27, 2016, an en banc panel of the U.S. Court of Appeals for the D.C. Circuit heard nearly seven hours of oral arguments in one of the most significant environmental cases of the year: West Virginia v. EPA, Case No. 15-1363. This case involves more than 100 parties, who have filed dozens of petitions challenging EPA’s Clean Power Plan and its regulation of greenhouse gas emissions from existing power plants. Challengers include 27 States – led by West Virginia and Texas – labor unions, rural electric cooperatives, industry and trade groups, and private companies. Four intervenor briefs and 18 amici curiae briefs have been offered in support of the Clean Power Plan, by parties including 18 States, Washington D.C., utilities and power companies, environmental organizations, and former EPA administrators. Among other things, challengers argue that EPA exceeded its authority under the Section 111(d) of the Clean Air Act by including electricity-shifting measures and “Outside the Fenceline” requirements in the Clean Power Plan.

As we previously reported, in February 2016, the U.S. Supreme Court granted a stay of EPA’s Clean Power Plan. The stay was highly unusual because the case is still before the D.C. Circuit Court, which denied a request for a stay in January 2016. Adding to the unusual nature of this case, the D.C. Circuit, on its own motion, decided to hear the case en banc in the first instance, which is why the full court sat for oral arguments on September 27th. Notably, Judge Merrick Garland did not sit for oral arguments and will likely not take part in any decision, as he has recused himself from all decisions of the D.C. Circuit while he awaits resolution of his appointment by President Obama to the U.S. Supreme Court. The remaining 10 judges in the D.C. Circuit, Judges Henderson, Rogers, Tatel, Brown, Griffith, Kavanaugh, Srinivasan, Millett, Pillard, Wilkins, took part in the oral arguments.

EPA’s defense of the Clean Power Plan went well during the oral arguments, with apparent support from the D.C. Circuit’s six democrat-appointed judges. The D.C. Circuit will likely expedite its decision in this widely-followed case, with an opinion expected in late 2016 or early 2017. Regardless of the outcome in the D.C. Circuit, the case will almost certainly be appealed to the U.S. Supreme Court for final resolution.

During the annual meeting of the United Nations General Assembly in New York City, on Wednesday, September 21, 2016, UN Secretary-General Ban Ki-moon announced that more than 55 countries have formally joined the Paris Agreement on climate change, officially crossing one of the two thresholds required to bring the Agreement into force. At the annual meeting, 31 additional countries deposited their instruments of ratification for the Agreement, bringing the total to 60 countries that together represent more than 47.5% of global greenhouse gas emissions. Earlier this month, China and the United States, the world’s two largest greenhouse gas emitters, joined the Agreement.

The Paris Climate Agreement was adopted by the 195 Parties to the UN Framework Convention on Climate Change (UNFCCC) at a conference known as COP21 in December 2015. The Paris Climate Agreement seeks to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement was signed on April 22, 2016, by 175 countries at the largest, single-day signing ceremony in history. It will enter into force 30 days after at least 55 countries, accounting for 55% of global greenhouse gas emissions, deposit their instruments of ratification. Following today’s UN meeting, formal approval from countries representing 7.5% in global emissions is still needed.

Usually, international treaties of this size and complexity take years to come into effect, while the Paris Climate Agreement is close to achieving full legal force only 9 months after it was adopted. At least some of the urgency behind the ratification of the Agreement is the fact that Republican presidential candidate Donald Trump has vowed to pull the United States out of the Paris Climate Agreement if he is elected. If the Agreement comes into full legal force before the next president takes office, it would take four years for the United States to withdraw under the formal procedures of the Agreement, and the United States would be bound by the Agreement in the interim.

More information about the Paris Climate Agreement and a video of Secretary-General Ban Ki-moon’s remarks is available here.

EPA recently issued fact sheets detailing climate change impacts for each state and U.S. territory. In doing so, EPA confirmed some very basic, general findings about climate change impacts overall:

Every state will become warmer.

The impacts of climate change are likely to be very different from state to state.

Increased rainfall intensity will cause more flooding in some states, while increasingly severe droughts may threaten water supplies in other states.

Farms and forests will be less productive in some states, but warmer temperatures may extend growing seasons in others.

The fact sheets are short two page documents focused on differing issues for each state including, for example, climate change impacts related to ecosystems; air pollution and human health; the Great Lakes; agriculture; the Illinois, Ohio, and Mississippi Rivers; coastal flooding; heavy precipitation/flooding; sea level rise; and winter recreation. The fact sheet for Illinois provides good insight into the kind of information detailed.

While the new information supplements the existing climate change data available online from EPA, the information in many of the fact sheets appears dated, very general in nature, and perhaps geared to the general public. Existing climate change data associated with impacts by region and by sector is more detailed and may be more useful overall. See https://www3.epa.gov/climatechange/impacts/.

On September 13th, from 5 pm to 7 pm, the CBA Environmental Law Committee, CBA Young Lawyers Section Environmental Law Committee, ISBA Environmental Law Section, and ABA Section of Environment, Energy, and Resources will be hosting a networking reception for environmental attorneys at Jenner & Block's offices in Chicago. Complimentary food and drinks will be provided thanks to the event’s sponsors. Jenner & Block partner Allison Torrence is the Chair of the CBA Environmental Law Committee and will be giving brief welcome remarks.

Details for this event are below. If you would like to join us at this reception, please RSVP here.

The International Bar Association’s Water Law News was published this week and includes an article written by Lynn Grayson regarding the Flint, MI water crisis. Her article titled Flint, Michigan Water Crisis: Lessons Learned provides a detailed factual account of the circumstances, decisions and governmental actions that led to the discovery of elevated levels of lead in Flint’s drinking water.

The article addresses possible lessons learned from the Flint situation, including regulatory oversight failures, aging infrastructure and environmental justice considerations. In her opinion, a quote from Michigan Governor Snyder when he testified before the House Committee on Oversight and Government Reform best summarizes what happened in Flint: “. . . Let me blunt: this was a failure of government at all levels—local, state and federal officials—we all failed the families of Flint.”

Founded in 1947, the International Bar Association (IBA) is the world’s largest leading organizations of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.